Bills Digest No. 36, 2022–23
PDF Version [395KB]
James Haughton
Social Policy Section
11 November 2022
Key points
- The Bill is a reintroduction of a substantively identical Bill put forward by the Morrison Government, which lapsed at the dissolution of the 46th Parliament.
- Amongst other things, the Bill responds to, and partially reverses (for long-term leases), the High Court’s decision in Williams v Wreck Bay Aboriginal Community Council & Anor [2019 HCA 4].
- The Bill has been negotiated and agreed with the Wreck Bay Aboriginal Community Council (WBACC) and community members.
- A key issue is that the Bill’s amendments may transfer financial and legal risks associated with Wreck Bay properties from WBACC to individual tenants, without tenants receiving offsetting benefits, or necessarily having the ability to manage ongoing risks.
- Some statements by WBACC appear to indicate that it expects the Bill to make changes regarding the enforcement of Jervis Bay by-laws, which the Bill does not appear to make.
- The changes to improve WBACC’s governance and corporate operations, including in relation to voting rights and introducing a ‘fit and proper person’ requirement will likely assist in the efficient and accountable administration of Aboriginal Land in Wreck Bay.
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Contents
The Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Other provisions
Date introduced: 26
October 2022
House: House of
Representatives
Portfolio: Indigenous
Australians
Commencement: The
day after Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as of
November 2022.
The Bills Digest at a glance
The Bill is a return to Parliament
of a substantively
identical Bill tabled by the previous Morrison Government on 30 March 2022,
which lapsed at dissolution of the 46th Parliament on 11 April 2022.
The Bill has two chief overall purposes: to respond to the
High Court decision in Williams
v Wreck Bay Aboriginal Community Council & Anor[1] (Williams)
by exempting long-term (40 years+) domestic leases in Wreck Bay from the Residential Tenancies
Act 1997 (ACT) (RTA); and to make a number of corporate
and governance changes to the Wreck Bay Aboriginal Community Council (WBACC or
‘the Council’). Other, largely symbolic, changes are made to the title of the Aboriginal Land
Grant (Jervis Bay Territory) Act 1986 (Land Grant Act), and to the
legislative requirements that must be met before land within the Booderee
National Park can be declared as Aboriginal Land.
These amendments have reportedly been extensively
negotiated with WBACC and members of the Wreck Bay community, who have
expressed a wish for the Bill to be passed as-is.[2]
The corporate governance and other changes seem
uncontroversial. For example, there are minor changes to the voting structure
and new rules around who may hold a position on the WBACC Committee, and a new
requirement for a Committee member to be a ‘fit and proper person’.
However, the Bill’s proposed response to the Williams
decision may place Wreck Bay tenants (and potentially WBACC) in a precarious
position. If passed, the effect of the Bill is that domestic leases over forty
years are no longer covered by the RTA, without any statutory scheme
replacing it. The relationship between landlord and tenant may then exist in a
kind of ‘regulatory vacuum’ covered by an amalgam of rights and implied obligations
under the common law and equity, which may be displaced or modified depending
on the contractual terms upon which each individual lease is negotiated. As the
High
Court made clear in the case of Williams:
the Land Grant Act is not exclusive of common law
and equitable rules concerning the content of a grant of an estate or interest
[at 156].
A corresponding impact is that the Bill may shift to long
term tenants the risks of home ownership, without providing corresponding
material benefits. This may result in a future financial and regulatory burden
for the Commonwealth, especially if tenants are unable to manage these risks
without assistance from WBACC. While the Explanatory
Memorandum to the Bill suggests these leases will be a voluntary measure, WBACC
corporate documents state a clear intention to shift ‘100%’ of tenants on
to these leases in the near future (p. 12).
There is also a potentially significant issue that statements
by WBACC appear to indicate that it believes legislative reform will give
them the ability to levy on-the-spot fines for breaches of Jervis Bay Territory
By-Laws. It is unclear whether this issue was intended to be addressed in
the current Bill, but the Bill does not appear to make any changes to current arrangements
for enforcement of by-laws.
Finally, there may also be an issue that the Bill may
result in community services being withdrawn from community residents who are
not registered members of WBACC. It is unclear if there are any persons in this
category.
Purpose of
the Bill
The Bill’s stated
purpose is that it amends the Aboriginal Land Grant (Jervis Bay Territory)
Act 1986 ( Land Grant Act) to:
- amend
the title of the Act to the Aboriginal Land and Waters (Jervis Bay Territory)
Act 1986
- exempt
certain leases granted by the Wreck Bay Aboriginal Community Council from the
application of the Residential Tenancies Act 1997 (ACT) (RTA)
- increase
the payment amount at which the Council is required to seek approval from the Minister
before entering into a contract
- amend
the council's governance structure and decision making powers to align more
closely with other corporate Commonwealth entities
- remove
the requirement for the council to enter into an agreement to lease with the
Director of National Parks before land in the Booderee National Park can be
declared as Aboriginal land
- clarify
that the functions of the council relate to registered members and eligible
children
- update
the wording of the term 'physical or mental incapacity' and
- eight
Acts to make consequential amendments.
Though not discussed in any detail in the Explanatory
Memorandum, a key purpose of the Bill is to respond to the High Court’s
decision in Williams.
Structure
of the Bill
See Explanatory
Memorandum, (pp. 1–2).
Background
In the case of Williams, Mr Williams, a long-term
occupant of a residence in Wreck Bay, argued that the WBACC had an obligation
under the RTA to, amongst other things, undertake necessary repairs to his
premises. Mr Williams is a registered member of WBACC, having joined in 1989. In
reply, WBACC argued that the RTA did not apply to its dealings with Aboriginal
Land under the Land Grant Act and, accordingly, that it did not have a responsibility
under the RTA to maintain the premises in a reasonable state of repair.
The legal question to be answered by the ACT Civil and
Administrative Tribunal (ACAT), and subsequently referred to the ACT Supreme Court,
was whether the relevant parts of the RTA could operate concurrently
with the Land Grant Act given the wording of section
46 of the Act:
[The Land Grant Act] does not affect the application
to Aboriginal Land of a law in force in the Territory to the extent that that
law is capable of operating concurrently with this Act.
Justice Elkaim of the ACT
Supreme Court found that the RTA was capable of acting concurrently
with the Land Grant Act, a result which WBACC
subsequently appealed. On appeal, the ACT
Court of Appeal concluded that section
38 of the Land Grant Act conferred a power on the WBACC to grant leases
on such terms and conditions as it thought fit, and therefore the RTA was
not able to operate concurrently with the Land Grant Act. Mr Williams
appealed the decision of the ACT Court of Appeal to the High Court. The High
Court found for Mr Williams, concluding that the two legislative regimes could
operate concurrently, meaning that WBACC did have obligations to its tenants
under the RTA (provided the existence of a residential lease could be established,
which was established by ACAT and not contested by WBACC).
In its 2018-2019
Annual Report, WBACC summarised the effect it believed this decision would
have on its operations:
The 2018–19 year saw a significant cultural shift in the
organisation’s approach to housing, brought about because of the implications
of the High Court decision which made Council liable for all repairs and
maintenance to housing regardless of whether a tenant has paid rent and
regardless of whether damage has been caused to the property by the tenant. The
application of ACT tenancy law also means that residents (regardless of whether
they hold a lease) can sue for compensation for houses not kept in a reasonable
state of repair. The risk that the decision poses to WBACC and government is
too significant to ignore and action needed to be taken (p. 45).
WBACC has since negotiated with the Commonwealth for
legislative reform to relieve them of this risk, and for financial assistance
with bringing existing properties up to ‘a reasonable state of repair’, which
the Commonwealth estimates at between $34
and $64 million dollars (p. 291). A Bill agreed with WBACC was tabled
by the Morrison Government on 30 March 2022, which lapsed at dissolution of
the 46th Parliament on 11 April 2022. The current Bill is identical in
substance to that previous Bill.
The current Bill addresses the impact of this decision on
WBACC, Mr Williams, and other long-term tenants of Wreck Bay, by proposing to
exempt leases of 40 years or more from the application of the RTA (Item
34). Absent a new (or alternative) regulatory regime, under which these
longer-term domestic leases will exist, it appears open to the parties to
individual lease agreements to negotiate provisions such as: the amount of rent
payable (if any); the duration of the lease; notice of entry and expiry
provisions; obligations surrounding repair and maintenance; outgoings and
expenditure; rights of re-entry and forfeiture of the lease (including relief
thereof). Although RTA protections will not apply to these leases,
individual negotiations may or may not displace implied common law and
equitable obligations vis a vis the parties to a lease arrangement.
Committee
consideration
Senate Standing Committee for the Scrutiny of Bills
At the time of writing this Bill (and its predecessor) had
not been considered by this Committee.
Policy
position of non-government parties/independents
At the time of writing, other parties had not commented on
the Bill.
As set out above, the Bill is substantively identical to a
previous
Bill of the same name introduced by the Morrison Government on 30 March
2022, which lapsed at dissolution on 11 April 2022. As such, it is
likely to receive bipartisan support.
Position of
major interest groups
The Bill’s Explanatory
Memorandum states that the Bill has been approved by WBACC and by the
community through a series of consultations (p. 3). These consultations were
conducted by both the Morrison and Albanese Governments, with consultations conducted
since the election confirming that WBACC and the community wanted no changes
made to the Morrison Government’s version of the Bill.
Financial
implications
The Explanatory
Memorandum states that the Bill has no financial implications (p. 8).
While this may be true for the changes directly made by
the Bill, Budget
Paper 1 (p. 291) states that the Home Ownership Strategy that the Bill is
intended to enable comes with associated costs estimated (but not yet
quantified) at between $34–$64 million:
The High Court held in
Williams v Wreck Bay Aboriginal Community Council & Anor
[2019] HCA 4, that the Australian Capital Territory’s Residential Tenancies
Act 1997 applies to Aboriginal Land in the Jervis Bay Territory and the
Wreck Bay Aboriginal Community Council (WBACC) is obliged to keep its leased
premises in a reasonable state of repair, regardless of whether tenants pay
rent. To mitigate its housing maintenance liabilities, WBACC has devised a Home
Ownership Strategy, which centres on granting 99 year
home ownership-style leases. Tenants who choose to take up such leases
would have effective home ownership, relieving WBACC of the legal obligation to
maintain those tenants’ properties. Before issuing home ownership-style leases,
WBACC must ensure that properties are in a reasonable state of repair. Initial
estimates for housing upgrades or new houses range from $34 million to $64
million and have not been reflected in the Budget estimates.
It seems unlikely that WBACC can raise this money, and so the
cost is likely to be borne by the Commonwealth. WBACC’s
2020–21 Annual Report states that a budget submission was made to the
Government seeking funding, after a costing had been completed by an external
contractor.
It should be noted that this, or a similar, contingent liability
would arise even if the Bill were not passed, as WBACC would then be responsible
for carrying out repairs and maintenance for domestic properties to the
standard demanded by the RTA, and would likely need Commonwealth
financial assistance to do so.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[3]
Parliamentary
Joint Committee on Human Rights
At the time of writing this Bill (and its predecessor) had
not been considered by this Committee.
Key issues
and provisions
A key issue associated with this Bill is the position Wreck
Bay tenants may be placed in if they accept the ‘99 year home ownership-style
leases’ proposed by WBACC and enabled by this Bill, which are not protected by the
RTA. Although this may appear to absolve the WBACC of financial
responsibility for the repair of properties, it may result in a financial and
regulatory burden for the Commonwealth if tenants are unable to manage
associated risks to structures and land in the future, including potential
PFAS contamination concerns.
There is also a potentially significant issue that WBACC
corporate documents (pp. 4–5, 10) appear to indicate that they believe the
Bill will give them the ability to levy on-the-spot fines for breaches of Jervis Bay Territory
By-Laws. This does not appear to be the case.
There may also be an issue that the Bill may result in
community services being withdrawn from any community residents who are not
registered members. It is unclear if there are any persons in this category.
Key Issue: Long
term leases, withdrawal from the RTA, and tenants’ risk
Item 34 of the Bill proposes a new subsection 38(7)
of the Land Grant Act. This subsection will make the RTA inapplicable
to leases of longer than 40 years duration issued to a registered member (or
non-registered member approved by the Minister) for domestic or community
benefit[4]
purposes. The practical effect of this clause is to reverse the effects of Williams
for this class of leases, so that WBACC is no longer liable, financially or
otherwise, for house and property maintenance for longer term tenants.
Issue: lack
of statutory requirements for remedial work or liveable housing
While WBACC has stated in its 2022–23
corporate plan that houses to be offered in long-term leases will be ‘brought
up to a standard to make them suitable for home ownership’ (p. 12), there is no
statutory requirement for them to do so, nor has the Commonwealth yet budgeted
funds to upgrade or replace the existing run-down housing stock (see Financial
implications above). While the Explanatory
Memorandum refers to tenants ‘voluntarily entering into a home
ownership style lease with the Council’ (p. 2) [emphasis added], the WBACC
corporate plan states that 100% of tenants will have entered into these leases
by 2025–26 (p. 12). With the RTA being made inapplicable, there would
appear to be no applicable legal standard by which the question of whether a
house is ‘suitable for home ownership’ can be assessed, or enforced by a tenant,
nor has funding yet been provided to bring housing to this standard. This
raises the risk that tenants will be pressured into accepting sub-standard
housing and/or housing they are unequipped to personally manage.
Issue:
potential immediate application to some existing leases
In Williams v Wreck Bay Aboriginal Community Council
(Residential Tenancies)[5],
the decision eventually upheld by the High Court, ACAT determined that even
though no written lease had been located, a residential tenancy agreement or
lease did in fact exist between Mr Williams and WBACC, which was subject to the
RTA. ACAT stated:
It appears from section 38(3) of the [Land Grant Act]
the lease could have been for as long as 99 years. The Tribunal simply does not
know.
During the proceedings, ACAT heard that ‘about 12 or 13’
properties inhabited by ‘12 or 13 families’ similarly did not have written
leases in place. It is almost certain that these properties, although not specifically
at issue in the Williams case, would also be covered by the High Court’s
judgment and the proposed changes in the current Bill.
It is consequently not clear whether these existing ‘12 or
13’ de facto leases for ‘as long as 99 years’ would be considered to
have durations longer than 40 years, as no findings were made on this issue. If
these de facto leases are considered to have durations longer
than 40 years, then the effect of proposed section 38(7) would be to make the RTA
inapplicable to these properties as soon as the Bill’s amendments took effect,
even if no remedial works have yet been carried out. Presumably this would immediately
release WBACC from responsibility for rebuilding, maintenance, repair etc of this
old, unmaintained, but inhabited, housing (absent any other sources of contractual
or property law obligations found under the common law or equity).
It is also not clear whether any tenants with written
leases currently have lease terms longer than 40 years. If so, these concerns
may also apply to them.
Issue: a regulatory
vacuum for the ‘new’ landlord-tenant relationship?
The notion of new ‘home-ownership style’ leases (Explanatory
Memorandum, p. 3) presents some potential legal issues. If the RTA
regime does not apply to long-term leases, what is the legal framework that
governs the rights and responsibilities between landlord and tenant?
The situation is not analogous to the ACT, in which 99-year
leasehold interests are held directly from the Crown (and may be registered
under the Land Titles
Act 1925 (ACT)). In Wreck Bay, Aboriginal Land was granted as
inalienable title to WBACC. It may be leased, licensed or otherwise ‘dealt
with’ directly by WBACC pursuant
to section 38 of the Land Grant Act, but the title remains
with WBACC.
WBACC has stated in its 2022–23
Corporate Plan that it is currently unclear what legislative regime (if
any) would govern the proposed long-term ‘home-ownership style’ leases, including
who would be responsible for registering the leases, or whether they are
subject to (any) planning laws or development codes:
Sometimes it is not clear which level of government or which
agency is responsible for service provision or management. An example of this kind
of cross jurisdictional confusion from the past year has arisen during
discussions between WBACC, the Department of Infrastructure and the ACT
government in relation to subdivision, registration of title and Land Use
Planning for the WBACC Home Ownership Program.
It seems that there is no current facility within the ACT
Government to manage registration of leases within the Jervis Bay Territory.
There is also a question about whether WBACC, in granting long-term leases,
needs to comply with ACT planning laws? (To date, the Council has been
complying with the requirements of the ACT Building Act for new development and
renovations.). Assuming that WBACC is required to follow ACT planning laws,
should the proposed Land Use Plan (LUP) be modelled on the ACT Territory Plan?
Would this allow the Council to adopt the ACT Development Codes in their
entirety, including any future amendment to the Codes? Is WBACC obliged to seek
the approval of any second party to implementation of the LUP? (Under the Land
Grant Act the Council is required to seek the approval of the Minister if a
proposal may have a significant effect on the environment.)
Can WBACC be nominated within the LUP as the consent
authority for development applications, provided that there are no significant
or undue effects on the environment? (In which case the approval of the
Minister would be required?) These are all questions that WBACC is currently
grappling with and they will require resolution during the coming year (p. [4]).
The Bill does not appear to resolve these issues, but potentially
enables WBACC to grant long-term leases capable of being ‘sold’ to other registered
members (Explanatory
Memorandum, p. 3) before any of these complex questions are fully addressed.
Following Williams, this may result in further
legal disputes about who owes what obligations with respect to the property(s)
in Wreck Bay that are subject to the new arrangement. It is worth noting that such
complications do not arise in the case of ‘true’ home ownership situations,
where alienable freehold rights (for example those available in most
cities and towns) are indefinite in duration and without any private interest
in the estate reverting back to a lessor or any superior private interest.
Issue: the
risks of home ownership without the material benefits
The trade-off proposed to tenants by WBACC, and endorsed
by the Commonwealth in the Bill, is that while WBACC will pass any
responsibility to repair and maintain properties to tenants, tenants will
receive an upgraded house with ownership-equivalent title and
then ‘enjoy the intergenerational benefits of homeownership.’ However,
these benefits may not materialise, due to the encumbrances and practical
difficulties attaching to any property in Wreck Bay. This then raises the
prospect that with the passage of time, tenants may again be living in damaged
or dilapidated housing which they may lack financial capacity to repair, but
for which WBACC has no legal responsibility (under the RTA).
In the superficially comparable situation in the ACT,
where land is held under 99-year Crown Leases, homeowners are readily able to
obtain insurance against damage, or leverage the value of their house to raise
capital for repairs or upgrades via a loan or mortgage. They are able to obtain
mortgages to buy or renovate houses or invest in commercial ventures, and enjoy
rising property values over time. In Wreck Bay, it is unclear whether or how
these benefits will be available to ‘home-owners’.
Insurance
Insurers may be reluctant to issue ordinary home insurance
at affordable prices to residents of Wreck Bay under longer term ‘home
ownership style’ leases. This is because:
- As construction may not have been legally covered by ACT (or other)
planning laws and building codes (even if they have been adhered to in
practice) insurers may not be able to efficiently assess any risks or liability
stemming from construction issues (see ‘a regulatory vacuum’ above). For
example, if a builder of a Wreck Bay house is found to have performed
substandard work leading to subsequent damage, but that work was not covered by
any statutory planning law or building code, and was signed off by WBACC and/or
the tenant, would an insurer be able to recover costs from that builder?
-
Land in and around Wreck Bay is contaminated by PFAS
runoff from naval base HMAS Creswell and the Jervis Bay Range Facility, with
a
currently unquantified effect on properties,
which may give rise to unknown risks (and hence insurance claims) in future.
-
Properties in and around Wreck Bay are rated as being at medium to high
risk from bushfires in the near future by recent
studies of climate change’s effect on insurability in Australia.
-
There may be racial discrimination against Aboriginal residents by lenders
and insurers. Racial
discrimination in insurance in Australia has not been extensively studied but
has been shown to exist in the related private
rental
and business
finance markets, and in the US
and UK
insurance industries.
The combination of these factors may inhibit Wreck Bay community
residents’ access to affordable home insurance in the private market.
Mortgages,
loans and capital (non)appreciation
For the same reasons (construction code risks, PFAS
contamination, bushfire risk, and racial discrimination) Wreck Bay residents may
also have difficulty securing loans against or otherwise leveraging their
properties, or obtaining loans to buy properties within the community. Three
additional factors may further limit access to finance:
-
As a property could only be sold to another member of the Wreck Bay
Aboriginal Community (without explicit permission from the Minister) there will
not be a sizable market for them, meaning property values are unlikely to rise
substantially over time. This makes the property an unattractive loan security
or vehicle for intergenerational wealth building.
-
The requirement for ministerial permission for sale to the general
market would mean that banks might regard the property as encumbered (as it
could not be easily sold in the event of loan default), and not suitable as a
security for a loan.[6]
-
Banks may be reluctant to issue mortgages on, or loans secured by,
Aboriginal homes on Aboriginal land due to downside reputational risks. As
stated in the Northern Territory Aboriginal housing context in 2015:
Bankers expressed a further concern about public relations
should they ever need to enforce their rights of foreclosure under a mortgage.
It was stated, frankly, that it would be a public relations nightmare for a
bank to be on the news for evicting an elderly remote Aboriginal person from
their first home due to default on a bank loan. These concerns mean that banks
may be reluctant to lend on a traditional 'one on one' basis and would be more
comfortable if there was, for example, government guarantees or other
assurances provided.[7]
These obstacles do not appear to be insurmountable, and
could be overcome by, for example, support from Indigenous Business Australia’s
Indigenous
housing loan program, or a Community Land Trust
model in which WBACC offered a variety of tenure options, or played an ongoing
role as finance guarantor, or collective negotiator of insurance and repair
services, as does a strata body corporate. However, available WBACC documents
do not mention any such options or ongoing role for WBACC, but appear to be
oriented towards shifting legal risk away from WBACC (2022–23
Corporate Plan, p. 7). In future, if these
issues are not resolved, Wreck Bay residents may again be appealing to the
Commonwealth for financial support for housing.
Potential
Issue: enforceable by-laws?
In a number of corporate publications, such as the most
recently available annual report, WBACC has suggested that current laws do
not enable it to effectively enforce Jervis Bay by-laws,
and that legislative reform is underway to remedy this situation. For example,
the 2022–23
WBACC Corporate Plan states:
Legislative and Regulatory Challenges to the Maintenance
of Aboriginal Land:
The Land Grant Act includes a set of By-Laws in
relation to activities that can/cannot occur on the land. The By-Laws have no
compliance mechanism attached. A warden may point out a breach, but to pursue a
matter WBACC would have to prosecute the matter in court. There is no facility
for fines or alternative enforcement mechanisms.
WBACC is working with the Commonwealth Government to implement legislative
changes to allow WBACC to efficiently enforce the By-Laws. This activity is
well underway the bill was introduced to Parliament; the House of
Representatives, in March 2022; this lapsed at dissolution in April 2022. Until
the By-Laws can be enforced WBACC's ability to manage and maintain Aboriginal
Land is impacted (pp. 4–5).
This appears to refer to the introduction of the
(identical previous) Bill under the Morrison Government.
However, the Bill (in its current and previous form)
contains no provisions relating to mechanisms to enforce Wreck Bay by-laws. The
capacity to levy penalties for breaches of by-laws is already provided by the
existing Aboriginal
Land Grant (Jervis Bay Territory) Regulation 2016 (the Regulation),
although this does not appear to cover WBACC’s request for ‘fines or
alternative enforcement mechanisms’ that would avoid having to take court
action. Existing subsection 52A(8) of the Land Grant Act enables the
Regulation to make provision for an offender to pay a fine as an alternative to
prosecution, but the Regulation does not currently enliven this section.
It is not clear why WBACC appears to believe that the
current Bill, which was apparently subject to extensive consultation,[8]
will provide them with additional enforcement powers. It is possible that the
Commonwealth and WBACC have agreed on a revision of the Regulation, invoking subsection
52A(8), to be tabled after passage of the Bill, which has not yet been brought
to the attention of Parliament. However, a new Regulation would not be dependent
on passage of the Bill.
The Morrison Government did not table any new Regulation
for Jervis Bay by-laws before dissolution. If it had, the dissolution of
Parliament would only have paused the period for consideration and disallowance,
not automatically disallowed it[9]
(unlike Bills, which lapse on dissolution) so, unless a new motion for
disallowance were tabled, the new Regulation would have taken effect once the
new Parliament was seated and the disallowance period elapsed.
Potential
issue: disenfranchisement or withdrawal of services
As noted in the second
reading speech, residents of Jervis Bay Territory do not have votes in ACT
elections, nor in a regular local government body. However, WBACC does provide
a local-government-equivalent representative and service delivery organisation
to the Wreck Bay Community.
Items 4–9 of the Bill limit WBACC’s service
delivery, representative and other community functions from being provided to
‘the Community’ to ‘registered members and their children’. While this provides
WBACC with increased clarity of corporate governance, it may mean that
representational, community and other services are withdrawn or denied to any
people residing in the community, who are not registered members. It is unclear
if there are any persons in this category.
Other provisions
In addition to the changes proposed to the lessor-lessee
relationship above, there are other provisions in the Bill that specifically concern
decision-making by WBACC. These appear to be aimed at empowering WBACC to make its
own decisions without too much ‘red-tape’, including, for example, raising the
threshold at which WBACC is required to seek approval from the Minister from
$100,000 to $1,000,000 (Item 10). When the Land Grant Act was
first passed in 1986, this amount was $1,000. The rise appears to be reasonable
in the context of the rise in property prices and inflation generally.
The governance and corporate operations provisions appear
uncontroversial from a legal or policy standpoint and seem to be in keeping
with the long-standing ‘community-focused’ functions of WBACC found
in s. 6 of the Land Grant Act.
The changes to WBACC’s governance and corporate operations,
and including the role of a CEO as an accountable authority of WBACC (Item 3),
would seem to allow WBACC to better perform these functions in a transparent,
consistent and accountable manner. Positive initiatives from the point of view
of accountability appear to include:
- empowering
registered members to remove the Executive Committee of WBACC where required (Item
26), and
- introducing
a ‘fit and proper person’ test to hold a position on the Committee (Item 30).
The governance changes appear to serve the Committee, WBACC
and its members well into the future as it grapples with the challenges of
managing culturally significant land and waters in the face of relatively few
financial resources. The fact that the governance changes are endorsed by WBACC,
and the wider Wreck Bay community, is also noteworthy.
[1]. Williams
v Wreck Bay Aboriginal Community Council [2019] HCA 4.
[2]. Explanatory
Memorandum, 29
[3]. The
Statement of Compatibility with Human Rights can be found at page 27 of the
Explanatory Memorandum to the Bill.
[4]. A
lease for community benefit purposes, or to a non-registered member, would have
to be shorter than 40 years owing to subsection 38(3) of the Land Grant
Act, unless the Minister granted consent for a longer lease.
[5]. Williams
v Wreck Bay Aboriginal Community Council (Residential Tenancies), [2015]
ACAT 79.
[6]. Nigel
Scullion, Second
Reading Speech: Prime Minister and Cabinet Legislation Amendment (2017 Measures
No. 1) Bill 2017, Senate, Debates, 13 February 2018, 864.
[7]. Central
Land Council, Submission
to the COAG inquiry into Indigenous land administration and use, 2015, 21.
[8]. Explanatory
Memorandum, 29.
[9]. Legislation
Act 2003, subsection
42(3); see Australia, House of Representatives, ‘Chapter
10: Legislation’, House of Representatives Practice, 7th ed., 1
August 2018, 409; Harry Evans, ed., Odgers’
Australian Senate Practice, 14th ed., Chapter
15, (Canberra: The Senate, 2016), 202, 457.
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